IN THE SUPREME COURT OF THE STATE OF FLORIDA

SC CASE NO. 13-962

4D12-125

STATE OF FLORIDA,

Petitioner,

vs.

CALVIN LEWIS OVERHOLT,

Respondent.

PETITIONER’S MERITS BRIEF

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

CELIA TERENZIO

Assistant Attorney General

Bureau Chief, West Palm Beach

Florida Bar No. 656879

MELANIE DALE SURBER

Assistant Attorney General

Florida Bar No. 0168556

1515 N. Flagler Drive

Suite 900

West Palm Beach, Florida 33401

crimappwpb@myfloridalegal.com

Telephone: (561) 837-5000

Fax: (561) 837-5099

Counsel for Petitioner

Electronically Filed 10/04/2013 12:59:45 PM ET

RECEIVED, 10/4/2013 13:03:35, Thomas D. Hall, Clerk, Supreme Court

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES.........................................iii

PRELIMINARY STATEMENT .........................................1

STATEMENT OF THE CASE AND FACTS .............................. 1

SUMMARY OF THE ARGUMENT.......................................12

ARGUMENT.................................................... .13

THE FOURTH DISTRICT COURT OF APPEAL ERRED

WHEN IT FOUND THAT THE TRIAL COURT PROPERLY

PLACED A SCREEN BETWEEN THE VICTIMS AND THE

DEFENDANT AND ALLOWED THE TESTIMONY TO BE

SEEN VIA CLOSED CIRCUIT TV, MOREOVER, ANY

ERROR WAS HARMLESS BEYOND A REASONABLE

DOUBT.

CONCLUSION....................................................22

CERTIFICATE OF SERVICE........................................23

CERTIFICATE OF TYPE SIZE AND STYLE............................23

iii

TABLE OF AUTHORITIES

Cases

Barnes v. State, 29 So. 3d 1010, 1026 (Fla. 2010)............. 13

Coy v. Iowa, 487 U.S. 1012, 1021 (1988)....................... 15

Dawson v. State 951 So. 2d 931 (Fla. 4th DCA 2007) ............ 13

Harrell v. State, 709 So. 2d 1364 (Fla.), cert. denied, 525 U.S.

903, 142 L.Ed.2d 194, 119 S.Ct. 236 (1998) .................. 15

Hopkins v. State, 632 So. 2d 1372, 1377 (Fla. 1994)........... 18

Hughs v. State, 819 So. 2d 815(Fla. 1st DCA 2002)......... 18, 19

Maryland v. Craig, 497 U.S. 836, 855-856 (1990)............... 16

McLaughlin v. State, 79 So. 3d 226 (Fla. 4th DCA 2012).... passim

Overholt v. State, 4D12-125 (Fla. 4th DCA, April 3, 2013) ..... 11

State v. Ford, 626 So. 2d 1338, 1345 (Fla. 1993).............. 15

State v. Parker, 276 Neb. 661, 757 N.W.2d 7, 18 (2008)........ 14

State v. Tarrago, 800 So. 2d 300 (Fla. 3d DCA 2001)........... 15

Statutes

Section 92.54, Florida Statutes............................... 14

1

PRELIMINARY STATEMENT

In this brief, the parties shall be referred to as they

appear before this Honorable Court of Appeal except that

Petitioner may also be referred to as the State.

STATEMENT OF THE CASE AND FACTS

Appellant was charged by information with sexual battery of

a child under the age of twelve (Count 1) and lewd or lascivious

molestation of a child under the age of twelve (Count 2) (R pp.

10-11).

After a pre trial hearing, regarding the child victim

testimony and the use of a screen the trial court ruled as

follows:

THE COURT: -- in State of Florida vs.

Calvin Lewis Overholt, Jr. Case

472011CF115A. Mr. Albright is present, Mr.

Cook is present. And the Defendant is

present. The jury is out of the courtroom.

We started -- we were gonna start 15 minutes

early to do the hearing regarding the child

victim/witness testimony. And the

procedures which the State has proposed that

we used in this case, I think this is a

third or fourth case where this issue has

come up and every time I address this issue,

I -- I become more and more convinced that

we really aren't flying under Florida

Statute 92.54 and that case law because that

actually involves taking testimony of the

victim or witness outside of the courtroom

and then using a closed circuit television

to somehow publish that to the jury and

somehow effectuate cross examination and

they say that implicates the right to

confront and cross examine witnesses. The

procedure that is using here is far

2

different and for less, in my opinion,

implicative of the right to confront and

cross examine witnesses. What we have here

is that the victim witness is live, here in

court, present in front of the jury, the

jury can see him. The witness victim is

maybe eight to 10 feet away from the jury,

maybe 15, 20 feet away from the Defense,

defense counsel. Of course he's represented

by counsel, he's not entitled to hybrid

representation. Mr. Cook is the one that

effectuates the right to confront and cross

examine witnesses because he's the attorney

of record. And Mr. Cook is absolutely

unfettered in his ability to do that. Mr.

Cook can see, hear, observe the witness in

person, can confront and cross examine him.

Mr. Cook can move about the courtroom if he

wants to to get a better advantage or view

of the witness or victim during their

testimony. The only thing that we're having

is a white screen that is typically used to

publish pictures or overheads, but in this

case is gonna be used just to set up a

screen so the victim can't see the

Defendant. The Defendant is still present

in the courtroom. The Defendant can hear the

witness victim because the victim is

present. The only thing is the victim won't

be able to see the Defendant, which gives

the victim witness a little -- makes an

already stressful situation -- people --

I've seen officers up on the witness stand

looking at their reports and their hands are

shaking. It's traumatizing enough

testifying in felony court, but when you're

a seven year old kid in a sex case, there's

some additional trauma, I think that could

be -- a reasonably prudent person of normal,

common sense and intelligence could discern

just from the mere circumstances. I'm not

prejudging. You still have a burden to

present evidence and testimony, I still have

a burden to make specific findings, but I

can tell you, I'm just make something

findings regarding the procedures because

this is the third or fourth time that we've

3

utilized this procedure. And the Defendant

will also have completely unfettered

discretion consult with his attorney. So

Mr. Cook can talk to his client, his client

can suggest -- well, I heard this -- heard

this in his voice or I -- additionally, I

didn't make this finding, the Defendant can

actually see the witness victim because

there's a camera and it's broadcast on a

large television screen in living color for

the Defendant to see. So he can see him on

TV, he can hear him in real time. The

defense attorney, Mr. Cook can see and hear

the victim witness and is not blocked at all

by that screen. So with that, Mr. Albright,

do you have any further evidence or

testimony to offer on that issue?

(R. 2, pp3 -5) Trial counsel made no objection to the procedure

as outlined by the trial court (R. 2, p. 5). Instead trial

counsel argued that the trial court had not made sufficient

findings that the child would suffer emotional harm (R. 2 p,

12). The trial court went on to find that the child’s mother’s

testimony regarding his nightmares and emotional distress was

reliable and found that the child would suffer at least moderate

emotional harm without the protection of the screen (R. 1 p. 13-

14).

Turning to the admissions contained in the recorded phone

conversations between the victim’s mother1 and the defendant,

they were played as follows:

(The recording was played.)

1 Undersigned is using initials to protect the identity of the

victim.

4

P.C : This is February 11th, 2010 --

DETECTIVE FARLESS: 11.

P.C.: 11, at 2:10 with phone call 2000.

(Phone rings)

(Phone rings)

CALVIN OVERHOLT: Hello.

P.C.: Hey, is this Cal? Hey, what are you

doing?

CALVIN OVERHOLT: Nothing.

P.C.: Nothing much. What you up to?

CALVIN OVERHOLT: Nothing.

P.C.: Hey, I needed to talk to you about

something. [SC] (inaudible) talked to me

about that you had done something to him and

I wanna call and ask you if you did. I'm

not gonna say nothing, I just need to know.

CALVIN OVERHOLT: No, I didn't touch that

boy.

P.C.: Because (inaudible) his grades has

dropped and he said that you did and told me

what you had done to him. And I don't think

it's right, but if you did do that to him,

you shouldn't have done it.

CALVIN OVERHOLT: I didn't touch that kid. I

can't help what he says. Pearly --

P.C.: I believe -- I believe [SC], I

believe that you did do it. Because my -- I

just -- I can't do it. I need to get him

some help now and I need the truth because I

need the truth. If not, I'm gonna have to

call the law to find out. Please, just tell

me the truth.

5

CALVIN OVERHOLT: Pearly, I am telling you

the truth. I haven't been around [SC].

P.C.: You was. Around right there, right

around Christmastime, Cal. And he told me

that he come in and said good morning to you

and you put your hands down his pants and

put your finger in his butt hole.

CALVIN OVERHOLT: I never -- no, Pearly.

P.C.: My son will not just come up and tell

me that cause you know I can tell when

my son's lying to me and I know my baby is

not lying to me. And you know -- you know

it's the truth. I haven't told [SC] but I'm

gonna – (inaudible). I need to know the

truth, Cal, I really do and I don't believe

I'm getting the truth from you. He really

needed the help and I need the help.

CALVIN OVERHOLT: Pearly -- Pearly, I did

touch him in the private, I never stuck my

finger up his ass hole.

P.C.: Okay, Cal.

CALVIN OVERHOLT: But, I never done that. I

don't know he where he come up with that

(inaudible). I (inaudible) do this.

Cheyenne says to put it -- put it up his

asshole. She damn sure did. There's no

reason why.

P.C.: My daughter is not gonna do that.

You just told me that you did, so.

CALVIN OVERHOLT: (inaudible).

P.C.: So, I'm gonna --

CALVIN OVERHOLT: I wouldn't be -- I

wouldn't be saying that, Pearly, if I didn't

catch him.

P.C.: Yeah, but --

6

CALVIN OVERHOLT: But anyway --

P.C.: Why -- why did you do that, Cal? Why

–

CALVIN OVERHOLT: I don't know. I don't

know.

P.C.: You don't know. You don't know why

you did that to my baby? My

baby(inaudible). (inaudible) and I swear to

God. I gotta go. (inaudible).

(Recording turned off.)

(R. 2 pp. 100-103).

The second phone call was also played for the jury as

follows:

(The recording was played.)

P.C.: Hello.

CALVIN OVERHOLT: Pearly.

P.C.: What? What?

CALVIN OVERHOLT: I don't believe you're

being mad at me.

P.C.: Well, (inaudible) mad at

you.(inaudible) I'm not gonna say nothing.

I just want you to stay away. You hear me.

CALVIN OVERHOLT: Pearly, Pearly, I'll

definitely stay away. (inaudible).

P.C.: You -- did you -- did you stick your

finger up my son's as?

CALVIN OVERHOLT: I'm telling you the God's

truth, Pearly, I swear on your mamma's

(inaudible), I did not do nothing like that

to that boy.

7

P.C.: But you touched his private parts?

CALVIN OVERHOLT: No, I didn't Pearly. What

do you want me to say, sweetheart?

P.C.: You told -- you just got done telling

me you did.

CALVIN OVERHOLT: I said I don't

(inaudible).

P.C.: Yes, you did. You said you just --

CALVIN OVERHOLT: Pearly, listen, listen.

Pearly, are you still there?

P.C.: Yeah, I'm still here.

CALVIN OVERHOLT: Pearly, I'll tell you

(inaudible) honestly, honestly, all jokes --

P.C.: You never did what, Cal?

CALVIN OVERHOLT: I never stuck my fingers

up his fuckin' butt.

P.C.: No, but what did you do?

CALVIN OVERHOLT: What do you mean what I

do?

P.C.: What did you do to my son is what I

wanna know, exactly what you did to him?

CALVIN OVERHOLT: I just stuck my hands down

his britches, I did.

P.C.: Just down his britches and did what -

- in the front or the back?

CALVIN OVERHOLT: The front.

P.C.: In the front. What right do you have

touching my seven year old son like that?

CALVIN OVERHOLT: Pearly, I'm trying to talk

to you. Pearly, I'm not -- Pearly, I don't

8

know. I'm fuckin' crazy, I guess. I --

don't ask me, Pearly. I'm just, I'm very

sorry. Very sorry.

P.C.: How (inaudible) my son any better.

It's not gonna take away the pain that he's

gonna go through.

CALVIN OVERHOLT: Pearly, (inaudible) one

fuckin' time.

P.C.: Did you touch any one of my other

kids?

CALVIN OVERHOLT: No, I didn't.

P.C.: You did not. Did you have Simon do

anything to my kids?

CALVIN OVERHOLT: No. No, no, no, no, no.

No, I did not, Pearly, I'd kill him. I

swear on mama's (inaudible).

P.C.: Don't swear on my mamma's

(inaudible) like that. She don't deserve

it.

CALVIN OVERHOLT: Shit, I tell the truth

when I tell that.

P.C.: You're not telling me the truth about

nothing, Cal. You told me a little bit

about what I wanted to hear -- needed to

hear and not --

CALVIN OVERHOLT: You hear what, what?

P.C.: You told me the truth and I want the

rest of it.

CALVIN OVERHOLT: There is no more.

P.C.: There is more because my son don't

know nothing about no sticking no fingers

up nobody's butt holes.

9

CALVIN OVERHOLT: I'm telling you, I never

did.

P.C.: Oh, but it makes you-all hot and

hard, huh? It made you-all hot and hard to

sit and do that to my kid?

CALVIN OVERHOLT: No, my dick don't get

hard.

P.C.: How many times you touch my son down

there?

CALVIN OVERHOLT: Just once.

P.C.: Just once?

CALVIN OVERHOLT: One time. That's --

that's the truth. Pearly, I ain't got no

reason -- I'm not -- I told you the truth

and I'm not lying about nothing else. You

wanted to know the truth, tell you the truth

-- I tell you the truth and yet you still

(inaudible) --

P.C.: Well, guess -- do you know what, I

believe that you did stick your finger up my

son's rear end because I will get him

checked, Cal. If you do not tell me

everything that I need to know, I will go

get him checked and I will take him to the

sheriff's department right now.

CALVIN OVERHOLT: Pearly, Pearly, I'm

telling you the truth, I never did that. I

went (inaudible) in the front, but I never

touched him in the butt.

P.C.: But you shouldn't have touched him at

all.

CALVIN OVERHOLT: You're right, you're

right, you're right.

P.C.: Yeah, I know I'm right.

10

CALVIN OVERHOLT: But I never touched him --

touched him in the butt.

(Recording turned off.)

(R. 2 pp 104-108)

The eight year old victim, S.C., testified at trial that

the defendant touched him in his private area, both on his front

and in the back (R. 2 p. 86). The child testified that he

touched his privates under his pants, inside of his underwear

(R. 2 p. 87). The Defendant asked him if it felt good and did

not stop when the child asked him to stop (R. 2 p. 87). The

child also testified that the defendant put his finger inside of

his butt hole (R. 2 p. 88).

The Jury entered a verdict of Battery as a lesser included

offense of Sexual Battery (R. 1 p. 42). On November 30, 2011,

Appellant was adjudged guilty in accordance with the jury’s

verdicts (R. 1 pp. 47-48) and sentenced to serve life in prison

on Count 2 (R. 1 p. 50), concurrent with one year in jail on

Count 1 (R. 1 p. 49). Credit was given on each sentence for

time served. Appellants lowest permissible Criminal Punishment

Code sentence is 84.75 months in prison (R. 1 pp.43-44).

On April 3, 2013 this Court issued an opinion reversing the

conviction for battery and lewd and lascivious molestation of a

child under the age of twelve, finding the trial court erred in

allowing a screen to be placed between the victim and the

11

defendant in the courtroom during the victim’s testimony.

Overholt v. State, 4D12-125 (Fla. 4th DCA, April 3, 2013) citing

McLaughlin v. State, 79 So. 3d 226 (Fla. 4th DCA 2012). The

Fourth District Court of Appeal found as follows:

Calvin Overholt, Jr., appeals his

convictions for battery and lewd and

lascivious molestation of a child under the

age of twelve. Citing to our decision in

McLaughlin v. State, 79 So. 3d 226 (Fla. 4th

DCA 2012), Overholt argues that the trial

court committed reversible error when it

allowed a screen to be placed between the

victim and Overholt while the victim

testified in open court during his jury

trial. We agree and reverse his convictions

and sentence.

***

On appeal Overholt argues that the

conditions under which the victim testified

violated his Sixth Amendment right to

confront witnesses against him and otherwise

denied him a fair trial. Overholt argues

that the court should have followed the

procedure of section 92.54, Florida Statutes

(2012), and used a closed circuit

television. McLaughlin is on point. The

method of shielding employed by the trial

court to shield the victim from the

defendant is not authorized by the statute

and was inherently prejudicial. McLaughlin,

79 So. 3d at 228–29 (citing State v. Parker,

276 Neb. 661, 757 N.W.2d 7, 18–19 (2008)).

(Footnote omitted).

The Fourth District Court of Appeal essentially found this

type of error per se reversible and wholly failed to conduct a

harmless error analysis.

12

SUMMARY OF THE ARGUMENT

In this case, the defendant was able to view the witness

via a television placed next to the screen, thus his right to

confrontation was not violated. Moreover, in light of the

defendant’s admissions, any error was harmless beyond a

reasonable doubt.

13

ARGUMENT

THE FOURTH DISTRICT COURT OF APPEALS ERRED

WHEN IT FOUND THAT THE TRIAL COURT PROPERLY

PLACED A SCREEN BETWEEN THE VICTIMS AND THE

DEFENDANT AND ALLOWED THE TESTIMONY TO BE

SEEN VIA CLOSED CIRCUIT TV, MOREOVER, ANY

ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT

In this case, the Fourth District Court of appeal has

erroneously found that the use of the screen to shield the

victim is not authorized by statute and is inherently

prejudicial. Moreover, contrary to the holding of the Fourth

District Court of Appeal, any error is harmless beyond a

reasonable doubt.

As a preliminary matter, in this case, the defendant failed

to object to the procedure employed by the trial court, thus,

this claim was wholly unpreserved for appellate review (R. 2, pp

3-5). See Barnes v. State, 29 So. 3d 1010, 1026 (Fla.

2010)(finding alleged confrontation clause violation

procedurally barred because no specific objection was made to

preserve the claim for review); Dawson v. State 951 So. 2d 931

(Fla. 4th DCA 2007) citing Mencos v. State, 909 So.2d 349, 351

(Fla. 4th DCA 2005)(finding that although Dawson also complains

of a Confrontation Clause violation, he did not make that

objection below, therefore, it is not preserved).

Additionally, in Mclaughlin v. State, 79 So. 3d 226 (Fla.

4th DCA 2012), as relied upon by the Fourth District Court of

14

Appeal, the error was not found to be fundamental as it was

found to be in this case, rather the Court engaged in a harmless

error analysis and found that in that case the error could not

be harmless because, the defendant never admitted the crimes and

the state’s case relied wholly on the victims testimony. Id. at

228. Thus, because this type of error is not fundamental, it

was in fact unpreserved and all relief should have been denied

by the Fourth District Court of Appeal.

In this case, the Fourth District Court of appeal relied on

State v. Parker, 276 Neb. 661, 757 N.W.2d 7, 18 (2008), where

the Supreme Court of Nebraska wrote:

[T]he screen unduly compromised the presumption of

innocence fundamental to the right to a fair trial.

The presence of the screen in the courtroom, in an

obvious and peculiar departure from common practice,

could have suggested to the jury that the court

believed [the victim] and endorsed her credibility, in

violation of [the defendant's] right to a fair trial.

....

[T]he inherently prejudicial practice in this case

cannot pass close scrutiny, because the court had

available another equally effective method of

protecting [the victim] while procuring her testimony

that would not have been inherently prejudicial to

[the defendant's] due process rights. Section 29–1926

specifically provides for various means of obtaining

the victim's testimony through pretrial videotaping or

closed-circuit video from another room. It does not,

actually, make any reference to using a screen in the

courtroom.

First, unlike Nebraska, the use of the screen for the

protection of the child witness is in fact authorized by Florida

15

law. Contrary to the finding of the Fourth District Court of

Appeal in this case, Section 92.54, Florida Statutes, does not

provide the sole means by which a trial court may exercise its

inherent authority and its discretion to protect a child

witness. To the contrary, pursuant to Florida Supreme Court case

law, a trial court may implement a procedure not expressly

authorized by the Supreme Court or otherwise authorized by law

if the procedure is necessary to further an important public

interest. State v. Tarrago, 800 So. 2d 300 (Fla. 3d DCA 2001).

See State v. Ford, 626 So. 2d 1338, 1345 (Fla. 1993).

The Supreme Court held in Ford,

‘All courts in Florida possess the inherent powers to

do all things that are reasonable and necessary for

the administration of justice within the scope of

their jurisdiction, subject to valid existing laws and

constitutional provisions.’ A court’s inherent powers

include its ability to protect witnesses. Thus, the

trial court could have relied on its inherent powers

to use an unauthorized procedure that would have

protected the child witness in the instant case.

State v. Ford, 626 So. 2d at 1345 (citations omitted)(emphasis

added). See also Harrell v. State, 709 So. 2d 1364 (Fla.), cert.

denied, 525 U.S. 903, 142 L.Ed.2d 194, 119 S.Ct. 236 (1998).

Thus, it is clear that the use of the screen to protect the

child witness is in fact authorized by Florida Law.

Secondly, in Mclaughlin, this Court misconstrued the

holding of Coy, when it found the use of the screen inherently

prejudicial. In Coy v. Iowa, 487 U.S. 1012, 1021 (1988), the

16

U.S. Supreme Court required individualized findings of necessity

to justify child testimony from behind a screen, and in Maryland

v. Craig, 497 U.S. 836, 855-856 (1990), the Court required an

evidentiary hearing to determine whether child testimony on one-

way closed circuit television was necessary to protect the child

(emphasis added).

In Maryland v. Craig, 497 U.S. 836, 844-845 (1990), the

United States Supreme Court explained the holding of Coy as

follows:

We have never held, however, that the

Confrontation Clause guarantees criminal

defendants the absolute right to a face-to-

face meeting with witnesses against them at

trial. Indeed, in Coy v. Iowa, we expressly

“le[ft] for another day ... the question

whether any exceptions exist” to the

“irreducible literal meaning of the Clause:

‘a right to meet face to face all those who

appear and give evidence at trial.’ ” 487

U.S., at 1021, 108 S.Ct., at 2803 (quoting

Green, supra, 399 U.S., at 175, 90 S.Ct., at

1943 (Harlan, J., concurring)). The

procedure challenged in Coy involved the

placement of a screen that prevented two

child witnesses in a child abuse case from

seeing the defendant as they testified

against him at trial. See 487 U.S., at 1014-

1015, 108 S.Ct., at 2799-2800. In holding

that the use of this procedure violated the

defendant's right to confront witnesses

against him, we suggested that any exception

to the right “would surely be allowed only

when necessary to further an important

public policy”- i.e., only upon a showing of

something more than the generalized,

“legislatively imposed presumption of

trauma” underlying the statute at issue in

that case. Id., at 1021, 108 S.Ct., at 2803;

17

see also id., at 1025, 108 S.Ct., at 2805

(O'Connor, J., concurring). We concluded

that “[s]ince there ha[d] been no

individualized findings that these

particular witnesses needed special

protection, the judgment [in the case before

us] could not be sustained by any

conceivable exception.” Id., at 1021, 108

S.Ct., at 2803. Because the trial court in

this case made individualized findings that

each of the child witnesses needed special

protection, this case requires us to decide

the question reserved in Coy.(Emphasis

added).

In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme

Court affirmed the use of closed circuit television as a means

to view testimony of a child victim, however the Court made no

distinction between a screen and closed circuit television

(emphasis added). Rather, the Court affirmed the use of closed

circuit television based upon the fact that in Craig, the lower

court had made individualized findings regarding the harm to the

child victim, unlike in Coy, where there were no individualized

findings. Id. at 845.

Therefore, the undersigned would argue that the Court’s

holding in Mclaughlin v. State, 79 So. 3d 226 (Fla. 4th DCA

2012), and in this case, that the use of a screen is inherently

prejudicial, is wrong in light of the fact that the United

States Supreme Court, in both Coy and Craig, has found no

distinction between the use of a screen and the use of closed

circuit television. Rather, the issue in both of those cases

18

centered upon the particularized findings of harm to the child

victim, not the method by which the child testified.

Moreover, the Fourth District Court distinction in

Mclaughlin, that testifying from behind a screen lends undue

credibility to the witness, yet testimony via closed circuit

television does not, is a distinction that is illogical at best,

and contrary to United States Supreme Court precedent in Coy and

Craig.

Thirdly, the Fourth District Court of Appeal essentially

found that the error is per se reversible when it failed to

engage in a harmless error analysis. This ruling is expressly

and directly in conflict with this Court’s decision in Hopkins

v. State, 632 So. 2d 1372, 1377 (Fla. 1994) and with the First

District Court of Appeal decision in Hughs v. State, 819 So. 2d

815(Fla. 1st DCA 2002).

In Hopkins, this court found as follows:

Even though the constitutional right to

face-to-face confrontation is involved in

both evidentiary issues raised in this case,

a constitutional error does not

automatically require reversal of a

conviction. In fact, “constitutional errors,

with rare exceptions, are subject to

harmless error analysis.” State v. DiGuilio,

491 So.2d 1129, 1134 (Fla.1986). The United

States Supreme Court has taken a similarly

strict view of constitutional error. See

Arizona v. Fulminante, 499 U.S. 279, 306-09,

111 S.Ct. 1246, 1263-64, 113 L.Ed.2d 302

(1991) (citing only three examples of

constitutional error that are not subject to

19

harmless error analysis: coerced confession,

right to counsel, and impartiality of

judge). In fact, the Supreme Court has

specifically determined that violations of

the Confrontation Clause, including denial

of face-to-face confrontation, are subject

to harmless-error analysis. Coy, 487 U.S. at

1021, 108 S.Ct. at 2803; see also Delaware

v. Van Arsdall, 475 U.S. 673, 106 S.Ct.

1431, 89 L.Ed.2d 674 (1986).

In assessing the harmlessness of a denial of

face-to-face confrontation, the reviewing

court cannot speculate on whether the

witness's testimony would have been

unchanged, or the jury's assessment

unaltered, had there been confrontation.

Instead, harmlessness must “be determined on

the basis of the remaining evidence.” Coy,

487 U.S. at 1022, 108 S.Ct. at 2803.

In the instant case, neither the victim's

testimony by closed circuit television nor

her out-of-court statements were properly

admitted due to the court's failure to make

the specific findings required by sections

92.54 and 90.803(23). Based upon Hopkins'

own admission to several investigators,

there is evidence to support his conviction

on one count of child sexual battery. Thus,

the errors in admitting the child's closed-

circuit testimony and out-of-court

statements were harmless with respect to

that count.

Moreover, in Hughs v. State, 819 So. 2d 815 (Fla. 1st DCA

2002), the First District Court of Appeal addressed the whether

the use of a partition may in fact be harmless and found as

follows:

20

On the second issue, we agree with Appellant

that the trial court's findings were

insufficient to satisfy the requirements of

section 92.54, Florida Statutes

(1997)(permitting the use of closed circuit

television in proceedings involving victims

or witnesses under the age of 16). See

Hopkins v. State, 632 So.2d 1372, 1376

(Fla.1994)(holding that the trial court's

findings were insufficient under section

92.54(5)). Moreover, section 92.54 provides

for the use of closed circuit television but

not a partition. See generally Coy v. Iowa,

487 U.S. 1012, 1021, 108 S.Ct. 2798, 101

L.Ed.2d 857 (1988)(reversing judgment

against defendant convicted of lascivious

acts with a child and remanding for

determination of whether the Confrontation

Clause error was harmless; although the Iowa

statute at issue permitted testimony by a

child behind a screen in the courtroom,

there were no individualized findings by the

trial court that these particular witnesses

needed special protection). However, this

error by the trial court was harmless

because of Appellant's admissions. See

Hopkins, 632 So.2d at 1377 (holding that

there was harmless error because appellant's

own admission to several investigators

supported his conviction of sexual battery).

It is notable that the Fourth District Court of Appeal

decision in Mclaughlin, the Court in fact conducted a harmless

error analysis and reasoned as follow:

The State has made no attempt to establish

that this inherently prejudicial practice

was harmless and did not actually contribute

to the jury's verdict. Nonetheless, we hold

that the error was harmful. State v.

DiGuilio, 491 So.2d 1129, 1139 (Fla.1986);

see § 924.33, Fla. Stat. (2010) (“No

judgment shall be reversed unless the

appellate court is of the opinion, after an

21

examination of all the appeal papers, that

error was committed that injuriously

affected the substantial rights of the

appellant.”). McLaughlin never admitted to

committing the acts on the victims, and the

State's entire case relied upon their

testimony. Both of the victims testified

that McLaughlin used threats to keep them

from telling anyone about the alleged abuse.

Therefore, the jurors could have made the

inference that the screen was used because

the court believed the victims needed to be

protected from testifying in the presence of

McLaughlin. Accordingly, we reverse and

remand for a new trial.(Emphasis added)

It is clear that in Mclaughlin the Fourth District Court of

Appeal recognized the necessity of a harmless error analysis,

particularly in the situation where the defendant makes

admissions. However in this case, it appears that the Fourth

District Court of Appeal has receded from that position and

ignored the necessity of a harmless error analysis as required

by this Court in Hopkins, supra. Here, the defendant admitted

to the lesser included offense of battery and the jury convicted

him as such.

Therefore, the Fourth District Court ruling that placing a

screen in front of the victim while testifying is per se

reversible error, is wrong in light of the aforementioned

precedent and this case should be reversed and the conviction

and sentence should be affirmed.

22

CONCLUSION

Based on the foregoing argument, Petitioner requests that

this Honorable Court reverse the decision of the Fourth District

Court of Appeal.

Respectfully submitted,

PAMELA JO BONDI

Attorney General

Tallahassee, Florida

//s Celia Terenzio

CELIA TERENZIO

Assistant Attorney General

Bureau Chief, West Palm Beach

Florida Bar No. 656879

//s Melanie Dale Surber

MELANIE DALE SURBER

Assistant Attorney General

Florida Bar No. 0168556

1515 N. Flagler Drive

Suite 900

West Palm Beach, FL 33401

crimappwpb@myfloridalegal.com

Telephone: (561) 837-5000

Counsel for Respondent

Fax: (561) 837-5099

23

CERTIFICATE OF SERVICE/EFILING

I HEREBY CERTIFY that a true and correct copy of the

foregoing “Petitioners Brief on the Merits” has been furnished

electronically to this Court and by Electronic Mail to: Tatjana

Ostapoff, Assistant Public Defender, appeals@pd15.org, located

at the Criminal Justice Building, 421 Third Street, 6th Floor,

West Palm Beach, Fl. 33401. This 4th day of October 2013.

//s Melanie Dale Surber

MELANIE DALE SURBER

CERTIFICATE OF TYPE SIZE AND STYLE

The undersigned hereby certifies that the instant brief has

been prepared with 12 point Courier New type, a font that is not

proportionately spaced, on October 4, 2013.

//s Melanie Dale Surber

MELANIE DALE SURBER